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March 2014 Archives

My Business is Being Sued. What Should I be Focused Upon and What's the Best Way to Resolve This?

When businesses become involved in a business dispute, and one of the parties is sued by the other it can become a huge distraction. There can be significant contingent liabilities associated with the dispute, and disruption in the work of the management team. It's important to immediately draw upon the experience and expertise of a proven business litigation law firm. At the Loftin Firm, we understand the complexities of business litigation, and will help to identify several potential strategies to resolve the dispute as efficiently as possible. Litigation is, by its very nature, the most expensive and time consuming option for all parties. We will work to help to establish common ground, negotiate resolutions to issues that avoid litigation, and guide you through alternatives such as mediation or arbitration. It will be important for you to bring this chapter in your business to a successful close. It will also be important for you to have the freedom to remain focused upon the business at hand and managing on-going operations.

I'm the Executor of an Estate in Carlsbad, What Should I Do?

Most people are genuinely honored when a friend, family member or loved one asks them to be the executor of their estate. When the time finally arrives, most executors are overwhelmed to learn of the responsibilities they've agreed to. They are even more surprised to learn that they are personally liable for their actions as executor, and overwhelmed by the complexity of the tasks ahead of them. You are entitled, as an executor, to seek advice and counsel and the estate will pay for this (it doesn't come out of your pocket). The experienced probate and estate administration attorneys at the Loftin Firm will guide you each step of the way. We can help to make the process much easier to understand, and work with you to ensure that each obligation is successfully discharged, providing you with support and peace of mind.

What is "Protecting the Corporate Veil" and Why Is That Important?

Protecting the corporate veil is a critical business concept.  One of the primary reasons for having an LLC, C-Corporation or S-Corporation is to provide liability protection to you and others in the business. Many businesses evidently download forms from some site, fill them in, register with the State of California and the IRS and they are "in business". The corporate structure exists to protect you as the owner(s) from personal liabilities, and to preserve your personal home and assets and keep them separate from the business. When a creditor is pursuing company, the first thing they will ask to see are your corporate documents. Their primary goal is to "pierce the corporate veil". Many forms of corporate entities require specific regular actions such as a meeting of the stakeholders with recorded minutes. You want to make sure that you do not "co-mingle" your business assets with your personal assets. There are other strategies to ensure that you maintain the protections of the "corporate veil" to safeguard your personal assets. You've worked so hard to start and build your company. It's just as important to make sure you seek the advice of experienced business attorneys who can help you to protect them.

Real Estate Purchase and Sale Agreements in North County are Complex Contracts

If you are purchasing or selling raw land, commercial property, or investment property in North County the "Purchase and Sale Agreement" is much more than a document that says who is buying what from whom, and for how much.  This is a strategic document designed to foster the successful completion of a transaction between the buyer and the seller.  It establishes critical understandings between the parties such as warranties and representations, valuation, and the responsibilities of each party while providing protections to both parties.  An effective purchase and sale agreement, option agreement, or other transactional document should limit the liability of the seller while protecting the buyer from hidden defects or unexpected developments.  If you are purchasing real estate, or are selling a commercial or investment property contact the experienced professionals at The Loftin Firm, P.C. and we will work to help structure an agreement that will smoothly move the parties through the transaction to a successful outcome.

Starting a New Business in Carlsbad or North County is More than Creating a New Entity

If you are an entrepreneur with a start-up company or are in the process of forming a new company in Carlsbad, Oceanside or North County there are many things you should take into consideration.  It is not as simple as downloading a form, filing it with the State of California and getting a federal tax ID.  How you choose to structure your company is very important.  Should you choose an LLC, a C-Corporation, an S-Corporation or some other form of entity?  This depends upon many factors including (but not limited to) how many people are involved, the nature of the new business, how profits are to be distributed, how investment will be brought into the company (now and in the future), and tax ramifications.  Most importantly, you're not registering a new company to create an entity and start into business.  You are setting up the personal and professional protections  necessary to keep you from being personally liable and losing all of your personal assets, your new business, as well as all of the time, hard work and money you've invested in this new venture.  Contact the experienced attorneys at The Loftin Firm, P.C. and we'll help you to cost effectively structure your company to get it off the ground, and to thrive.

Our California HOA Rules limit Renting of our Units, but Our Declaration of Conditions, Covenants and Restrictions ("CC&Rs") permit Renting of our Units

Which HOA document controls whether or not a unit can be rented? The CC&Rs are deed restrictions on all of the properties. As such, as to what you can and cannot do on, in or around the property is controlled by the CC&Rs. The HOA is permitted to pass Rules, but the authority and substance of the Rules must be permitted under the CC&Rs and applicable Statutes. Some HOAs incorrectly believe that they can pass whatever Rules are deemed to be appropriate for the community. This is an overreaching and incorrect statement. 

What is Probate in Carlsbad and North County San Diego? And how can I avoid it?

Probate here in Carlsbad, and across California is a court-supervised process for transferring assets to a deceased person's beneficiaries, as set forth in a Will or the California laws of intestate. If you've heard about the California probate process, you know that it can be lengthy, arduous and expensive. To avoid probate in San Diego County (and throughout the State of California), you can take control of your destiny and plan accordingly with a living trust, which can help ensure that your assets will be managed according to your wishes even if you become unable to manage them yourself. By contacting the experienced estate planning attorneys at The Loftin Firm P.C., you can design a living trust where your assets will be managed and distributed without the cost and supervision of the California probate court.  If you would like to discuss your individual needs, contact the estate planning attorneys at The Loftin Firm P.C. today and learn how we can help you proactively plan for the future.

Our HOA Documents do not conform to the new Davis Stirling Act. Does our documents or the Davis Stirling Act control what we do?

Generally, if there is a conflict between statutory law and a provisions in an HOA document, the statutory provisions will control - that means the provisions in your documents which conflict with the statutory provisions are void. Effective January 1, 2014 the prior Davis Stirling Act was repealed and a new Davis Stirling Act was passed by the California legislature. To often, we hear that our Bylaws or Declaration of Conditions, Covenants and Restrictions allow us to do "X", but you find out "x" violates the current law or you do not know that "X" violates the current law. The resulting risk is litigation and lack of knowledge or continuous and consistent action is not a defense to violation of a statute. We recommend that you have your existing Bylaws, Declaration of Conditions Covenants and Restrictions and other Operating Documents such as your Election Policy, Policies for Deliquent Assessment collection, Policies and Procedures for Enforcement of Governing Documents be reviewed for compliance with the new law.

Deliquent HOA Dues and Collection is an Area of Case Law to Watch

In the Huntington Townhouse Association, Inc. vs. The J.M. Trust (2014 WL 17300) the Appellate Division of the Orange County Superior Court in a case involving foreclosure of an assessment line, found that the HOA must accept partial payments of the HOA Dues and credit those payments against the principal amount of HOA Dues, excluding collection, interest, late fees and so on. As to the cost of collection, there was no collection method discussed in the decision. The decision is certified for publication by the Appellate Division, but also certified for appeal to a higher court. If the appeal is accepted, then the decision will be decertified. As experienced HOA attorneys we are carefully monitoring developments and are available to advise on these matters.

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The Loftin Firm, P.C.

The Loftin Firm, P.C.
5760 Fleet Street
Suite 110
Carlsbad, California 92008-4713

Toll Free: 866-933-2340
Phone: 760-814-9649
Fax: 760-431-2003
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